Military Commissions and Fairness

My friend Marty Lederman provides a lot of fascinating commentary about the en banc rehearing in the Al-Bahlul case (here and here). I’d like to focus on just part of Marty’s concerns about military commissions, that is, the absence of what he says are the “critical Article III protections of a civilian jury and tenure-protected judge.” (Actually, military commissions do have military judges who are all licensed lawyers and certified by federal law, and have panels of officers that function much like civilian juries.)

Allow me to observe that regardless of whatever differences may exist between military commissions and US Article III courts, we ought not forget that life-tenured judges and Article III-type juries are not just atypical of most justice systems on the planet, they are literally unknown in international war crimes tribunals. Quite obviously, as a matter of internationally accepted norms of due process, they are hardly essential to fair and just dispositions. So to the extent these factors are somehow conclusory indications of unfairness, the entire edifice of global criminal jurisprudence — not to mention war crimes tribunals — is undermined.

In addition, apart from the two issues Marty raises, few impartial observers would contend these days that those tried by military commission have fewer due process rights than those tried in federal courts, and in certain respects, they actually have more. In fact, it is rather ironic that this discussion arises at a time when public trust in the Article III judicial system is at an all-time low — not to mention that disapproval of the Supreme Court is nearing an all-time high.

Regarding life tenure, even for civilian courts it is hardly an unqualified virtue. Issues of senility and incompetence arise, along with the “dangers of arrogance, hubris, and abuse” that life tenure can produce and which could devolve into unfettered license and misconduct. More specifically, having been a non-tenured military judge (and, for that matter, a non-tenured faculty member) I’ve always been puzzled by the notion that the lack of tenure injects some kind of unfairness into the system. Is the assumption that non-tenured military judges will kowtow to the government in some way in order to assure their continued employment?

If so, where is the empirical evidence supporting that assumption? During my tenure on the bench as a court-martial trial judge I never saw or heard anything like that from my fellow judges. Furthermore, I would suggest that the actual performance of the military judges assigned to the military commissions is, if anything, rather deferential to the defense (and not nearly as hard-nosed as most of the tenured Article III judges have been in the habeas cases). Additionally, in terms of honesty and ethics, the public routinely rates military officers (all military judges are officers) significantly higher than civilian judges.

But, the fact is that members of the armed forces simply do not think in these kinds of terms. Underlying military professionalism is what General Sir John Hackett famously called the “unlimited liability contract” of military service. If someone agrees to lay down her life for your nation and your principles, why on earth would anyone think that military judges would compromise themselves merely for a job? Sure, there could be corrupt military judges, but there has also been more than one corrupt Article III judge.

Regarding juries, Marty relies on dicta in a 60-year old case (not one involving military commissions, incidentally), United States ex rel. Toth v. Quarles, for the proposition that “laymen are better than [military] specialists” at determining guilt or innocence, and that “plain people … have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices.”

Actually, the “plain people” today don’t necessarily agree as to their expertise when it comes to military matters. As I have pointed out elsewhere, in a 2008 case a federal jury sensed this very sort of inadequacy. In acquitting a former Marine of killing four Iraqi prisoners, the Los Angeles Timesreported that the jurors “did not feel qualified to judge a Marine’s actions in the midst of a battle.”

More to the point, I profoundly disagree with Marty’s suggestion that the military officers who serve on military commission panels would fail to “manfully” stand “up in defense of liberty.” These are people, many of whom are combat veterans, who have signed up to put their lives on the line “in defense of liberty.” To suggest that they would not do so in a military commission is utterly without basis. A legal argument underpinned by a suggestion of an absence of “manfulness” among the men — and women — of today’s military relative to civilians is, I would argue, a very weak one.

Whatever questions the Supreme Court might have had 60 years ago (before many reforms to the military justice system) about how “manfully” specialists like military personnel might do their duty in judicial proceedings, my bet is that the public feels quite differently today. A June 2015 Gallup poll finds that Americans have vastly more confidence in the military as an institution than they do in the civilian criminal justice system, to include even the Supreme Court. Additionally, a fairly recent Harris poll showed military officers as being second only to doctors as America’s most prestigious profession.

Perhaps of greatest significance is that in 2013 the Supreme Court let stand a conviction by court-martial of a civilian (non-US citizen) contractor, notwithstanding the Toth dicta Marty cites.

Let’s also not forget that jury trials have almost disappeared in Article III cases. Less than three percent of federal criminal cases are contested at all, and an even tinier percentage are actually litigated in front of juries. What is more is that the military commission panels are comprised of officers, practically all of whom have at least a bachelor’s degree, and more than 43 percent of whom have graduate degrees. Given that 70 percent of Americans don’t have undergraduate degrees, I would really like to see a report about a federal jury — anywhere — that is as well-educated as a military commission panel.

Additionally, all military officers hold security clearances, and very often high clearances. That means that they have been carefully — and rather invasively — vetted for all the kinds of things that may make a civilian juror vulnerable to tampering and other improprieties. How many civilian jurors could stand the kind of scrutiny someone holding a top secret clearance has undergone?

There is, of course, the theoretical concern that military commission panels have been “picked” by the convening authority as opposed to being drawn from a random pool. (Query: how much of a jury of “peers” could ever be assembled in the case of a foreign terrorism suspect?) More to the point: Where is the empirical evidence that military officers have performed their “jury” duties less faithfully and honorably than civilian jurors in Article III courts?

Finally, side-by-side comparisons of military commissions and other international war crimes tribunals make it clear that commissions afford defendants more due process rights than their counterparts around the globe. So regardless of what might be the merits of the tenured judge/juries discussion as a matter of constitutional interpretation among law professors and others, the case has yet to be made that the commissions as currently reformed are unfair to those they judge. Perhaps valuing substance over form can have its merits?